Split decision in Oracle/Google: Yes to infringement, maybe on fair use

The first part of Oracle (s orcl) and Google’s (s goog) epic intellectual property battle ended in deadlock on Monday after jurors couldn’t decide whether Google improperly used code from Sun Microsystems’ Java in Google’s Android mobile operating system.

According to several reporters tweeting live from San Francisco, jurors found that Google did indeed use protected code owned by Sun (later acquired by Oracle) in the code used to build Android, but they were unable to reach a decision on whether or not that was a “fair use” case: obviously a very key question. Google moved for a mistrial given the indecision on that point, and the court will consider arguments on that issue tomorrow and Wednesday, according to reports.

It’s not that surprising that the jury found that Google had used several lines of Java code: after all, Google admitted that nine lines of Java code were used the original version of Android (they’ve since been removed). The major question was whether or not Google had the right to use code related to 37 APIs (application programming interfaces), or packages of code that software programs use to talk to one another. Oracle argued that these APIs were protected works of art, while Google contended that APIs are expressly designed to be used by other software programs for communication.

And on that question, the jury deadlocked. Trial watchers believed the jury was on the edge of this mixed verdict Friday afternoon, but after they reported to Judge William Alsup that they were unable to reach agreement on a key question, Alsup sent them home for the weekend to see if they could start afresh Monday morning.

The case has involved testimony from several key figures from the past decade in the tech industry, including former and current Google CEOs Eric Schmidt and Larry Page; former Sun CEOs Scott McNealy and Jonathan Schwartz; and current Oracle CEO Larry Ellison.

The patent phase of the trial now begins, although much of the hype surrounding that portion of the trial fell flat after Oracle was forced to withdraw five patents it hoped to assert against Google after the U.S. Patent and Trademark Office found those patents invalid. Once the patent portion is complete, the jury will consider damages on the copyright portion unless a mistrial is declared.

Update: Google issued a statement: “We appreciate the jury’s efforts, and know that fair use and infringement are two sides of the same coin. The core issue is whether the APIs here are copyrightable, and that’s for the court to decide. We expect to prevail on this issue and Oracle’s other claims.”